District court rules that copyright to screenplay for the original “Friday the 13th” film reverted to screenwriter in 2018, holding that screenplay was not work for hire and screenwriter validly terminated his original 1979 grant of rights.

Plaintiff Manny Company engaged writer Victor Miller in 1979 to write the screenplay for the original “Friday the 13th” film. Miller, a Writers Guild of America member, executed a Writer’s Flat Deal Contract for the screenplay with the Manny Company, an entity that was formed by the film’s producer, Sean Cunningham, and was a signatory to the WGA collective bargaining agreement. The short-form agreement – styled as an “employment agreement” – did not expressly provide that the screenplay would be a work made for hire. Horror Inc. subsequently acquired the rights to the “Friday the 13th” franchise, including Miller’s screenplay.

Miller issued termination notices in 2016 to various entities, including Horror, seeking to terminate the 1979 grant of his copyright in the screenplay to Manny. Horror and Manny commenced this action seeking a declaration that the termination notices were invalid because the screenplay was a work made for hire, on the grounds that Miller was an employee of Manny at the time he wrote the screenplay. Miller asserted a counterclaim seeking a declaration that his termination notices were valid because he was not an employee, but rather an independent contractor.

The Copyright Act provides that copyright ownership vests initially in the author or authors of a copyrighted work, which can either be “the party who actually creates the work” or, in the case of a work made for hire, “the employer or other person for whom the work was prepared.” The initial author of a work has the right to terminate a grant of copyright unless the work is a work made for hire. The Copyright Act defines a work made for hire as “(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

On the parties’ cross-motions for summary judgment, the district court ruled that the “Friday the 13th” screenplay was not a work made for hire, and that Miller’s termination notice validly terminated Horror’s rights to the copyright in the screenplay.

As an initial matter, the court determined that the screenplay was not specially commissioned as a work for hire pursuant to the agreement between Manny and Miller, because the agreement was silent on the issue of work-for-hire status. The court further held that Miller was not an employee of Manny at the time he wrote the screenplay in 1979. The court explained that the traditional agency principles set forth in Community for Creative Non-Violence v. Reid governed the employee determination for purposes of the Copyright Act, rejecting plaintiffs’ argument that union members are “necessarily employees when hired by union signatory companies pursuant to a relevant collective bargaining agreement” for purposes of federal labor law, because “in no way did the [Reid] Court indicate an intent to subordinate its agency law analysis to any other standard – and particularly not to any other statutory regimes’ deviations from agency law principles.”

The Reid factors, the court explained, are “[1] the hiring party’s right to control the manner and means by which the product is accomplished[;] . . . [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.”

Under Second Circuit precedent, “the hiring party’s right to control the manner and means of creation, the skill required, the provision of employee benefits, the tax treatment of the hired party, and whether the hiring party has the right to assign additional projects to the hired party will usually be highly probative and should be given more weight in the analysis.” The district court, analyzing these factors, held that most, if not all, weighed against a finding of employee status, noting that “the combined weight of just Miller’s tax and benefits treatment is likely enough to result in a determination of independent contractor status,” and that Miller was not a Manny Co. employee at the time he wrote the 1979 screenplay.

The court also held that Miller was the sole author of the screenplay, rejecting the argument that the creative contributions of Manny Co.’s principal, Cunningham, and film investor Phil Scuderi conferred joint authorship upon either of them. The court explained that “fatal to any claim of joint authorship by Cunningham or Scuderi is the lack of sufficient evidence of intent among the parties to be co-authors,” noting, among other things, that “Miller was provided with sole credit for writing the screenplay, in all official documentation, including in copies of the treatment and screenplay that Cunningham concedes he assembled himself.” In any event, the court held, the Copyright Act’s three-year statute of limitations barred a claim of joint ownership in the screenplay by Cunningham or Scuderi. The court also rejected plaintiffs’ attempt to carve out elements of the screenplay from the reversion to Miller, because there was no evidence that they contributed anything “other than unprotectable ideas and scenes a faire.”

Finally, the court held that the three-year statute of limitations on claims of ownership – running from the “express repudiation” of a claimed author’s rights – did not bar Miller’s authorship claim. The court explained that a notice of copyright ownership in one of Manny’s owners was insufficient, because the notice was an indicia of ownership rather than authorship. The court also rejected plaintiffs’ argument that a copyright registration claiming Horror’s predecessor in interest as author constituted “express repudiation” because, among other things, the mere act of registering an adverse claim of authorship with the Copyright Office is not sufficient.

The district court ruled that Miller’s termination notices effected a reversion of the copyright to the screenplay, but declined to analyze the extent to which Miller can claim copyright in the well-known “Jason” character, because that character appeared only briefly in the original screenplay and film, and because “Horror or other participants may be able to stake a claim to have added sufficient independently copyrightable material to Jason in the sequels to hold independent copyright in the adult Jason character.”